FINAL AWARD ALLOWING COMPENSATION
(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 98-171093
Employee: William F. Cline
Employer: Indiana Western Express
Insurer: Virginia Surety Company, Inc.
Date of Accident/Occupational Disease: December 16, 1998
Place and County of Accident: Springfield, Greene County, Missouri
The above‑entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo Cum. Supp. 1999. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to § 286.090 RSMo Cum. Supp. 1999, the Commission affirms the award and decision of the administrative law judge dated May 10, 2000.
The Commission further approves and affirms said administrative law judge's allowance of attorney's fee herein as being fair and reasonable.
Any past due compensation shall bear interest as provided by law.
The award and decision of Administrative Law Judge Margaret Ellis Holden, issued
May 10, 2000, is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this ____7th___ day of December 2000.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
John P. Madigan, Jr., Chairman
Christian C.R. Wrigley, Member
Matthew W. O’Neill, Member
Attest:
Secretary
AWARD
Employee: William Cline Injury No. 98-171093
Dependents: n/a
Employer: Indiana Western Express
Additional Party: n/a
Insurer: Virginia Surety Company, Inc.
Hearing Date: 2/3/00 & 2/10/00 Checked by: MEH
FINDINGS OF FACT AND RULINGS OF LAW
1. Are any benefits awarded herein? YES
2. Was the injury or occupational disease compensable under Chapter 287? YES
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: 12/16/98
5. State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MISSOURI
6. Was above employee in employ of above employer at time of alleged accident or occupational disease?
YES
7. Did employer receive proper notice? YES
8. Did accident or occupational disease arise out of and in the course of the employment? YES
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted:
TRUCK DRIVING.
12. Did accident or occupational disease cause death? NO Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: BILATERAL UPPER EXTREMITIES AT THE 175 WEEK LEVEL
14. Nature and extent of any permanent disability: 10% TO EACH WRIST PLUS 10% MULTIPLICITY
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? NONE
Employee: WILLIAM CLINE Injury No. 98-171093
17. Value necessary medical aid not furnished by employer/insurer? $8,346.42
18. Employee's average weekly wages: $358.08
19. Weekly compensation rate: $238.72
20. Method wages computation: BY AGGREMENT
COMPENSATION PAYABLE
21. Amount of compensation payable:
Unpaid medical expenses: $8,346.42
9 weeks of temporary total disability (or temporary partial disability)
38.5 weeks of permanent partial disability from Employer
0 weeks of disfigurement from Employer
Permanent total disability benefits from Employer beginning N/A , for
Claimant's lifetime
22. Second Injury Fund liability: Yes No X Open
0 weeks of permanent partial disability from Second Injury Fund
Uninsured medical/death benefits
Permanent total disability benefits from Second Injury Fund:
weekly differential (0) payable by SIF for 0 weeks beginning
and, thereafter, for Claimant's lifetime
Total: SEE AWARD
23. Future requirements awarded: NONE
Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.
The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:
JOHN BANNING
FINDINGS OF FACT and RULINGS OF LAW:
Employee: William Cline Injury No. 98-171093
Dependents: n/a
Employer: Indiana Western Express
Additional Party: n/a
Insurer: Virginia Surety Company, Inc.
Hearing Date: 2/3/00 & 2/10/00 Checked by: MEH
On February 3, 2000, the parties appeared before the undersigned administrative law judge for a final hearing. The record remained open until February 10, 2000, for receipt of an exhibit. The employer appeared represented by William Richerson and the claimant appeared in person represented by John Banning. Memoranda of law were submitted by February 28, 2000.
The parties stipulated that on or about December 16, 1998, Indiana Western Express was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Virginia Surety Company, Inc. On the alleged injury date of December 16, 1998, William Cline was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. This employment occurred in Greene County, Missouri. The claimant's claim was filed within the time prescribed by Section 287.430. At the time of the claimed occupational disease claimant's average weekly wage was $358.08, sufficient to allow the compensation rate of $238.72 for temporary total and permanent partial disability benefits. No temporary total disability benefits have been paid. The employer has paid no medical benefits. The attorney fee sought is 25%.
ISSUES:
1. Whether the claimant sustained an occupational disease.
2. Whether the claimant gave the employer proper notice.
3. Whether the occupational disease arose out of the course and scope of employment.
4. Whether the occupational disease caused the injuries and disabilities for which benefits are now being claimed.
5. Whether the employer is obligated to pay for past medical expenses of $8,346.42.
6. Any temporary total disability benefits owed to the claimant.
7. The nature and extent of any permanent disabilities.
FINDINGS OF FACT:
The claimant worked for the employer as a relay driver. He and another driver worked as a team. They would pick up a load at the terminal in Springfield, Missouri, and deliver it to Kingman, Arizona. They would drop off the trailer there and pick up another and drive it back. The drive took approximately twenty hours. They would split the time between the two drivers. They would drive in five-hour shifts typically. They would make only one stop in Sayer, Oklahoma for fuel. When at Kingman they would take the trailer they delivered off and hand crank another on. This occurred about two times a week. He would be in the truck an average of 60 – 64 hours a week and behind the wheel 30 – 32 hours a week. Most of the time, approximately 85% they used a “Classic Freightliner” truck and the rest a “Century” model.
The claimant would drive with his left hand up and the right hand low on the wheel. He would hold the steering wheel with his left hand and operate the gearshift, remote mirrors, and interrupter switch with his right hand. His wrists were usually bent while he drove.
The claimant would sometimes have experimental tires on his truck, which would affect the tracking of the wheel. About 20 – 25% of the time it was windy. Sometimes the load was not as fully loaded as others. These were all factors that effected the driving of the truck and how easily it handled.
The claimant had no hobbies in which he did not use his hands nor did he have problems with his hands prior to working for the employer.
The claimant first noticed a problem in his hands in July 1998. He did not report it at that time. In November 1998 he first began to believe it was work related. Claimant first saw Dr. Seals in December 1998. He prescribed the claimant medication for inflammation in his wrist. He informed the dispatcher that he was having problems with his arms and would have to cut back. The claimant was not asked to fill out any kind of accident report at this time. The claimant was not told he had to notify Lewis or Myrna Stevens. He cut back to six trips per month. He did not make any further workers’ compensation report at this time.
The claimant continued to receive treatment from Dr. Stuart Seale. Dr. Seale eventually referred him to Dr. Raman. He first saw Dr. Salim Rahman on February 8, 1999, who diagnosed bilateral carpal tunnel syndrome. Dr. Rahman felt it was work related. After this visit he talked to Myrna and Lewis Stevens who own the company. He informed her that he had a work related problem with his hands. He had a phone conference with the insurance company. They denied the injury as work related. Dr. Rahman performed surgery to the claimant’s right wrist on February 26, 1999 and on the left on March 24, 1999. Dr. Rahman released him to return to work without restrictions on April 19, 1999.
The claimant incurred medical bills totaling $8,346.42. He also missed 9 weeks work as a result of his injury.
The claimant occasionally takes a diuretic for swelling in his ankle.
Dr. David Paff examined the claimant on September 20, 1999. He diagnosed bilateral carpal tunnel syndrome. He testified that the claimant gripped the wheel while driving for the employer a sufficient amount to cause carpal tunnel syndrome. He felt that the most substantial and significant factor causing the claimant’s condition was the repetitive gripping. He rated the claimant’s permanent partial disability as a result of the carpal tunnel syndrome at 7-½% of each wrist.
Dr. Jeffery Woodward testified that he did not believe that “truck driving activity, specifically, handling the steering wheel and shifting does not or is not a significant contributing factor nor – nor a causative factor of carpal tunnel syndrome or median neuropathy. In my opinion, the truck drivers who develop work-related carpal tunnel syndrome also engage in relatively frequent handling of cargo or other non-driving related repetitive hand work duty.” He evaluated the claimant on October 1, 1999. He did not find the claimant’s condition work related. He felt that the claimant had a permanent partial disability of 10% of each hand due to the carpal tunnel syndrome.
The employer admitted a film demonstrating the operation of a “Century” model Freightliner truck. Dr. Gil Mobley also accompanied the driver when the tape was made. Dr. Mobley did not examine the claimant or review any of the claimant’s medical records. He testified that he did not believe that the driving of a truck was a significant risk factor for carpal tunnel syndrome and that operation of this truck could not cause carpal tunnel syndrome because there was insufficient force present.
CONCLUSIONS OF LAW:
1. Whether the claimant sustained an occupational disease.
I find that the claimant sustained an occupational disease of bilateral carpal tunnel syndrome.
2. Whether the claimant gave the employer proper notice.
I find that notice is not a sufficient defense to this claim.
3. Whether the occupational disease arose out of the course and scope of employment; and 4. Whether the occupational disease caused the injuries and disabilities for which benefits are now being claimed.
These two issues will be addressed at the same time. I have carefully reviewed the evidence concerning the activities required by the claimant when he performed his duties driving a truck and the testimony of the doctors. I conclude that the opinions of Dr. Rahman and Dr. Paff are more persuasive. The claimant’s constant and repetitive gripping of the wheel with his wrists bent were sufficient for these physicians to conclude that this was a causative factor for carpal tunnel syndrome in this individual. I do not find Dr. Woodward and Dr. Mobley’s blanket denial that this could ever cause this condition in any individual as persuasive.
Therefore, I find that the claimant sustained an occupational disease that arose out of the course and scope of his employment and that this occupational disease caused the injury and resulting disability that is the subject of this hearing.
5. Whether the employer is obligated to pay for past medical expenses of $8,346.42.
I find that the employer was given the opportunity to provide treatment and refused to do so. I find that the employer is obligated to pay the past medical expenses of $8,346.42.
6. Any temporary total disability benefits owed to the claimant.
The employer shall pay nine weeks of permanent partial disability as a result of this injury at the rate of $238.72.
7. The nature and extent of any permanent disabilities.
I find that the claimant has sustained a permanent partial disability of 10% to each wrist at the 175-week level as a result of this injury. I further find that a loading factor of 10% of the total should be added for the multiplicity caused by the bilateral nature of the injury. This totals 38.5 weeks at the rate of $238.72.
Claimant's attorney, John Banning, is awarded an attorney fee of 25%, which shall be a lien on the proceeds until paid. Interest shall be paid as provided by law.
Date: 5/10/00 Made by: /s/ Judge Holden
Margaret Ellis Holden
Administrative Law Judge
Division of Workers' Compensation
A true copy: Attest:
/s/ Jo Ann Karll
Jo Ann Karll
Director
Division of Workers' Compensation